A Historical Review of the
Technical and Social Conflicts
OF
Aviation Accident Investigations
BACKGROUND OF THE PAPER
This paper is an updated report on a study of the conflicts that exist between the technical and social aspects of the aviation accident investigation process in the US. These same conflicts may well exist in other countries but that is not addressed in this study. While the concept for such a study dates back to the early 1980s, it was not until 1991 that work on the project began in earnest. The author, Dr. Michael K. Hynes undertook this research to complete his Doctoral Dissertation, Technical and Social Conflicts of Aviation Accident Investigations, which was published and presented at Oklahoma State University in 1995.
While his research was in progress, Hynes furnished drafts to various parties, including the former National Transportation Safety Board (NTSB) Chairman, Jim Hall. Perhaps the now famous December, 1999, $400,000 Rand Report, commissioned by Chairman Hall in June of 1998, which was stated to be a “self-critical examination of the (NTSB) agency” (p. v), was inspired by Hynes’ activities, findings, and letters to Chairman Hall.
In 1995, the research was updated and its findings were published and presented at the International Society of Air Safety Investigators’ October, 2000 seminar held in Dublin, Ireland. The study was updated again in 2005 in response to comments by NTSB Chairman Engleman Conners “that their was a need for change”.
In response to public demands, the US government made major changes to the aviation accident investigation process and charged the NTSB with the task of meeting the “social” needs of the public after major aviation accidents. NTSB Chairman Engleman Conners’ recent remarks to the aviation community was the first time a public discussion of the existing conflicts between the Technical and Social Conflicts of Aviation Accident Investigations was undertaken by a government official. Her remarks, which confirm some of the findings of this research, were considered a justification of reviewing, updating, and presenting the material contained herein.
SUMMARY
The aviation and legal communities, as well as the public and government agencies (specifically the FAA and NTSB), should join together to more openly discuss the concerns mentioned by Chairman Engleman Conners. These discussions should result in the adoption of one or more of the recommendations of this research. These groups can then request that new policies or laws be implemented to address the conflicts mentioned. This should help to achieve high quality aviation accident investigations that result in valid, complete, timely, and useful accident reports, which are reasonable expectations of the public.
As a result of several recent major air crashes, public confidence in the air transportation system has been lessened. Several times in the past, similar events resulted in major changes in the manner in which the US government has regulated aviation. The “first” FAA was created in response to a mid-air collision between two Air Carriers, and likewise the “second FAA” was also created in response to a mid-air collision some twenty years later. Again, a series of recent aviation accidents may be perceived by the public as an indication of the need for another change in the manner aviation is regulated and the way aviation accident investigations are conducted.
Following the recommendations of this study would add to the safety of the US air transportation system and help restore the public’s confidence in this mode of travel. Some of the billions of dollars in the Airway Trust Fund could be utilized to fund these changes at no additional cost to the taxpayers or the aviation industry.
As stated in the Rand report, “While the tenets upon which the NTSB was originally created remain sound, new approaches outlined in the recommendations are necessary to meet the demands of a more complex aviation system” (page xv). “Safer Skies Require Mindset Change” (Duke, 1999, p. 110).
Well known and respected former CAA aviation accident investigator C. O. Miller, in his in-depth analysis of the Rand report, agreed with many of the Rand Report’s findings (2000, p. 6). The conclusions and recommendations of the Rand Report and Miller’s comments, confirmed the findings of Hynes’ 1995 research which was updated in late 2000 and again in January, 2005. However, both Miller and Hynes felt the Rand report failed to address many issues which are stated herein and also recently mentioned by NTSB Chairman Engleman Conners.
As it was written several thousand years ago in the Old Testament, "Make justice your aim: redress the wronged, hear the orphan's plea, defend the widow" (Isaiah I, 17). Such a profound obligation still holds true and should be applicable to the social aspects of an aviation accident process. The adoption of one or more of the suggested recommendations of this research would help to accomplish this ancient but still valid request.
INTRODUCTION
The act of "flying" is an unusual combination of physical and physiological sciences which must be understood and followed to maintain an acceptable level of safety. Since the days of the first flights, aircraft accident investigation has played an important role in the development of the art, science, and mechanics of aviation (Dorman, 1976).
In the early years of aviation, 1903 through the mid 1930s, aircraft crashes were fairly common and seemed to be an acceptable and necessary part of the development of aviation (Walsh, 1975). When crashes occurred, the early inventors were anxious to learn what had happened, so that their next efforts at flying might not end in a similar fashion. Material failures were the most common causes of accidents, but the human factor, the pilot, very often played a critical role in determining the likelihood of accomplishing a successful flight (Josephy, 1962).
The early flights of the Wright Brothers and others were measured in seconds. The altitudes they reached were eight to ten feet and their speeds were usually less than 20 miles per hour (Vivan, 1921). Under these circumstances, most crashes did not result in any broken bones, only broken aircraft, broken hopes, and sometimes broken pride.
It was not until 1908, when US Army Lt. Selfridge was killed at Ft. Myer, VA (USA), that a death occurred due to a powered aircraft accident. This event resulted in the first formal US aviation accident investigation. The investigation process took only about six hours to complete (Squier, 1908). Because these early aviation accidents did not involve "the public," there was little interest in accident investigation outside the immediate aviation community.
As time went by, aviation in America grew, and the post World War One barnstorming age brought the magic of flight to thousands of people in America (Ward, 1953). Unfortunately, some of these flights ended in tragic accidents, with innocent non-aviators being injured or killed. These accidents resulted in public demand for safer aircraft, pilots and some form of government control over all aviation activities. This resulted in the adoption of “aviation laws” or regulations by various States. As early as 1911, the State of Connecticut passed the first aviation laws. Massachusetts soon followed and within five years approximately 25 states had passed some form of aviation regulation.
It was obvious to various legal scholars that regulating aviation on a state-by-state basis was not suitable for an activity as complex as flying. Gov. Baldwin of Connecticut requested the American Bar Association (ABA) to formulate and promote some form of proposed air regulations or laws at a “national” level. It was not until almost ten years later, that the ABA, at their 1921 annual convention held in Cheyenne, WY, adopted a set of proposed “national” laws for aviation. It then took Congress five years of discussion and debate to adopt The Air Commerce Act of 1926, the first national or federal regulation of aviation in the United States.
Also required were changes to America’s justice system in order to resolve the many new legal issues that aviation activities created. While the first “aviation case” in America took place in the early 1800’s (Guille v. Swan, New York Supreme Court 1806/1823, [19 Johnson, 381]), the courts had no experience dealing with the complex nature of powered aircraft. When courts were asked to deal with litigation that was undertaken related to aviation mishaps and accidents, there were no laws, administrative regulations, or history of “case law” to guide the court.
When aviation accidents took place and the public sought compensation for its losses, they found a void in the laws that should have been protecting them from this new science of flight (McNair, 1930). This was the foundation for the support of new laws (Forlow, Hotchkiss, Knauth, and Miles, 1929) to govern “these magnificent men and their flying machines”.
As mentioned earlier, in response to industry and public requests, the first aviation laws on a national level in the US were enacted in 1926 (Air Commerce Act). Soon afterwards, official government investigations of non-military aviation accidents began to take place (Young, 1931). The initial and primary purpose of the aviation accident investigation process was to prevent future accidents by learning as much as possible about each accident that had occurred (Dorman).
By the late 1930s, aviation was beginning to mature, and the skill levels of aircraft accident investigators were also being perfected (Dorman). As stated in the Civil Aeronautics Administration's (CAA) 1953 manual, Aircraft Design Through Service Experience, much of the development of air travel, "is a result of the lessons learned by these investigators from previous accidents" (p. iii).
At the end of World War Two, the aviation industry had reached a level of design and manufacturing that could produce the aircraft, supporting hardware, facilities, and infrastructure needed for a modern air transportation system. With the advent of the jet age, the safety level of air travel reached a point far above what had previously taken place. As stated in the Rand Report, “Safety in air transportation is, therefore, a matter of profound national importance” (p. v). This belief is shared by most nations throughout the world.
Considering the high frequency rate at which aircraft took off and landed, air travel had certainly become a very safe means of transportation (Mathews, 1995). The basis for this level of safety, at least in the US, was acquired from the lessons learned during government accident investigations conducted ever since the mid 1920s when the Civil Aeronautics Board was formed to investigate and report on the cause or causes of aviation accidents (Miller, 1994).
Background of the Problem
As the aviation industry matured, its safety record reached a level where the public began to accept traveling in an airplane as a normal activity that had high national value (Truman, 1947). From the early 1960s, when less than 20 percent of the public had flown, (Hynes, 1967) to the mid 1990s, when over 75 percent of the American adult public had flown, millions of take offs and landings were being made without incident (Pena, 1995, p. 16). “By the late 1900s, air travel had become a consumer product” (Hynes, 2000, p. 2). Aviation accidents, at least those of major airlines, were so infrequent that they were considered “random events" by some government officials and NTSB accident investigators (Schleede, 1992).
The technology of aviation has become so well-developed, that the reliability of the equipment being used reached a level where design defects or material failures were no longer the major causes of accidents. Much of this development was the result “of the lessons learned from investigating accidents” (Copeland, 1937, p. 2). This trend had been taking place for 30 years, and had been fairly stable for eight years (Taylor, 1990). The human factor was now accounting for approximately 60 to 80 percent of all aviation accidents (Reingold, 1994, p. 25). With the advent of computerization, automatic displays, and high-tech Flight Management Systems, human factor errors, some associated with built-in design flaws, were adding to the number of pilot error problems (Hynes, 1999).
However, as a result of a recent crash of an American Airlines’ Air Bus aircraft over New York City, the issues of “design” defects vs. “pilot error” have become a major topic of discussion within the aviation and legal communities. The “legal” posturing of the official NTSB parties to this investigation, American Airlines, Air Bus Industries, and the American Airlines’ pilots union, were thought to be counterproductive to the accident investigation process by NTSB Chairman Engleman Conners.
Unfortunately, unless a major, high public profile, or politically sensitive aviation accident was being investigated, the investigation process can become a routine “paperwork” activity (Waldock, 1992, p. 164). This expectation of routineness, on the part of many government investigators, resulted in work activities that detracted from the past high quality of NTSB reports (Wolk, 1993).
In the US, unless the accident was politically sensitive, or had a high public interest, the average investigation budget for non air carrier accidents was less than $3,000 (NTSB, 1994; Hynes, 1995). This is in stark comparison to major air carrier accident investigations which can cost the NTSB upwards of $25 million dollars each (Asker, 1996, p. 19). As pointed out in the Rand Report (and by Hynes, 1995), some general aviation accident investigations are “carried out by correspondence or telephone” (page 17).
However, when John Denver, the well-known song writer and singer, was killed while flying a home-built aircraft, an expensive in-depth NTSB investigation was conducted (Transportation Safety Institute [TSI], 1993). While the results of the investigation had public relations value for the NTSB, the technical findings had little if any value to the majority of the aviation industry who had no interest in home-built aircraft.
As pointed out by the Rand study, when famous individuals such as John F. Kennedy, Jr. have an accident while flying, it results in a great deal of public and media attention. In these cases, the NTSB was willing to spend tens of thousands of dollars on a general aviation accident, almost as much as on “the loss of a large commercial airliner” (page 29). The high profile and expensive investigation of the Kennedy crash did not go unnoticed by the aviation press (McKenna, 1999, p. 39).
With over 15.0 billion dollars in the US Aviation Trust Fund, all collected from the aviation industry (Jennings, 1993, p. 65) a small portion of these funds would be well spent if they were given to the NTSB for investigating general aviation accidents in more depth (Capt. M. J. Hynes, 1999).
For most general aviation accidents, the questions could be raised, (Hynes, 1995); “Are aviation accident investigators becoming conditioned by these statistics and trends?” and “Were government and private computer data bases on accident causation factors becoming distorted because of the input of incorrect or missing information?”
The Impact of the Legal System
A social concept, common in the US and rooted in old English law, was the undertaking of “tort litigation.” This was the legal remedy available to someone who had suffered a loss because of the acts (or failure to act) by another party (Black, 1991). When an aircraft accident happened, a "loss" to someone, called a plaintiff within the legal system, usually occurs. Personal injury, death and/or loss or damage to property are characteristics of all aviation accidents. Under the legal concept of res ipsa loquitur, (the thing speaks for itself) and other legal theories, claims for damages can be made when accidents take place.
To obtain justice within all legal systems, the plaintiff must be able to prove their claim against the alleged negligent party responsible for the loss, who is called a defendant. This proof of loss and negligence must be accomplished before the law will allow a plaintiff to receive compensation from the "wrongdoer" defendant (Madole, 1987).
"Proving the claim" invariably requires the plaintiff to have access to correct factual evidence concerning the accident. Under the US government controlled system of aviation accident investigation, only the NTSB, and the parties that the NTSB has designated to join in the investigation, who are never plaintiffs, (unless litigating against each other), were allowed access to accident sites, component inspections and testing, and critical documentation related to the accident (49 CFR, Part 800).
Theoretically, all of the factual evidence collected by the NTSB during the investigation process would later be made available to the public. This usually now occurs about 14 months after the accident when the NTSB releases it's Form 6120.4, Factual Report of Aviation Accident/ Incident. In the past, these reports were delayed for up to 30 months or longer for no apparent reason. To add to the problem, in many cases, the NTSB reports have key information deleted from the report and it is not uncommon to find factual errors in many accident reports, especially those that deal with non-air carrier operations (Wolk, Hynes).